General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1998 © American Bar Association. All rights reserved.
Checklist: When a Malpractice Claim is Filed
BY BARRY BACH
Barry Bach has been a member of Smith, Somerville & Case, L.L.C., in Baltimore, Maryland, since 1977. He is a defense lawyer who handles general litigation, including the defense of malpractice claims.
Reactions to malpractice claims vary, but generally there will be a high level of indignation on the part of the lawyer. Actions taken by a lawyer at the first hint of a potential claim can be extremely critical to the successful defense of a claim. If you get wind of a potential malpractice claim:
- Avoid avoidance—denial defers but does not resolve a problem.
- Read your policy of insurance and familiarize yourself with its contents. Notify your carrier of the claim in conformity with the policy's reporting requirements. Check the policy limits. Know the deductible. If applicable, check to see whether the policy affords coverage for punitive damages. Determine what claims are covered and whether any exclusions apply.
- Cease your representation of your claimant/client.
- Do not communicate anything to your claimant/client that could in any way be construed as misleading or a misrepresentation of the fact.
- If your client wants you to return the file, make sure you keep a copy of everything in the file. Do not let any part of the file out the door without making a copy of it.
- Immediately sit down, and in a document boldly entitled "Attorney-Client Privilege," prepare a comprehensive narrative of your recollection of all of the facts surrounding the claim. Let it all hang out—the good, the bad, and the ugly. Your defense counsel will need it.
- Be prepared to confront the reality that your carrier will generally resolve the case on a basis that is in its economic interest, regardless of your righteous indignation. The provisions of most policies vest the power to control the claim in the carrier, unless the insured is willing to pay any judgment that may be entered against him or her. It is sometimes difficult to invoke the adage "millions for defense but not one cent for tribute" when the millions come out of your pocket.
- Do not try to negotiate a settlement within your deductible without securing personal counsel. Deal only with new counsel for your former client. Do not deal directly with the former client. Remember, your client is now your adversary.
- If, as is generally the case, the carrier controls the assignment of counsel, determine if there are any choices and, if so, select the counsel in whom you repose the greatest confidence. Whether you can choose your lawyer or not, let your counsel handle the case. It goes without saying that "a lawyer who represents himself has a fool for a client."
- For your own mental health, although extremely difficult (sometimes impossible), try to view the case as though you were independent counsel for the defendant. Assume that dispassionate role and attempt to evaluate the merits of the case against you. Try to determine whether the case is one that can be won by a motions practice, or whether it presents issues for a jury. For example, were you in fact counsel for the plaintiff? Is the claim time-barred by the applicable statute of limitations? Depending on the answers to these questions, a motion for summary judgment may well be in order.
However, ask whether the nature of your prior relationship with the claimant presents questions of fact. Does the discovery rule apply to the statute of limitations in professional negligence cases in your jurisdiction? If so, does the issue of when plaintiff knew or should have known of his cause of action prove to be a question of fact that precludes a summary judgment? A realistic view of the case from the outset can at least create reasonable expectations on your part.